This journal entry is based on chapter 5 in Bilchitz et al.
Discuss and evaluate, in a paragraph of between 450-500 words, whether any of the different subjective theories to legal interpretation that you studied have (1) factually impacted or (2) should still impact legal interpretation in the South African legal context especially since the start of the democratic era. Motivate your answer throughout. [5+5=10]
The different subjective theories to legal interpretation have had factual impacts on legal interpretation in the South African legal context since the start of the democratic era. One of the subjective theories that has significantly influenced legal interpretation in South Africa is the intentionalist approach. This approach focuses on the intention of the lawmakers when interpreting legal texts, aiming to understand the purpose and objectives behind the enactment of the law. Since the end of apartheid in 1994, South Africa has seen a significant shift towards a more progressive and rights-based legal framework, with a strong emphasis on interpreting laws in a manner that promotes equality, dignity, and human rights. The intentionalist approach has been crucial in ensuring that the constitutional values enshrined in the post-apartheid constitution are upheld and given effect in legal interpretation. By focusing on the underlying intentions of the lawmakers, South African courts have been able to interpret laws in a way that advances the transformative agenda of the constitution, promoting social justice and equality.
Another subjective theory that has impacted legal interpretation in South Africa is the moral or normative approach. This approach emphasizes the ethical principles and values that underlie legal norms, advocating for an interpretation that aligns with moral reasoning and justice. In the South African context, the moral approach has been instrumental in shaping the interpretation of laws in line with the values of ubuntu, which emphasizes interconnectedness, compassion, and humanity. Since the democratic era, South Africa has witnessed a growing recognition of the importance of ubuntu in legal interpretation, with courts increasingly considering the broader societal impacts and moral implications of their decisions. This has led to a more holistic and context-sensitive approach to legal interpretation, which takes into account the lived realities of individuals and communities affected by the law.
Overall, the subjective theories of legal interpretation have played a crucial role in shaping the development of South African law in the post-apartheid era. By emphasizing the intentions of lawmakers and the moral principles underlying legal norms, these theories have helped to ensure that laws are interpreted in a manner that promotes the values of the constitution and advances the cause of social justice. As South Africa continues to navigate the challenges of a democratic and diverse society, the subjective theories of legal interpretation will remain significant in guiding courts in their interpretation of laws, ensuring that they remain relevant and responsive to the evolving needs and values of the South African legal system.